Honig v. Edlill Realty Co.

Appeal from a portion of an order of the Supreme Court at Special Term, entered in Sullivan County, on November 17, 1952, granting plaintiff’s motion for an examination of certain defendants before trial. Appellant objects only to that portion of the order which requires the examination of Thomas Raphael within the State of New York. The order requires the examination of the corporate defendant by Harry C. Resnick, its president, and Thomas Raphael, its secretary and treasurer, in Sullivan County, New York. Resniek, the president, is willing to appear and testify. It appears without dispute that the evidence of Thomas Raphael would be cumulative. It is also without dispute that Thomas Raphael is, and has been for approximately one year prior to the motion, a resident of the State of Florida. His testimony might be acquired by interrogatories or deposition taken there. Under these circumstances we regard it as an unreasonable hardship and unnecessary expense to the defendants to produce him personally for examination in Sullivan County. (Bolognino v. Anheuser-Busch, 279 App. Div. 819.) Order modified, on the law and facts, by striking therefrom the requirement that Thomas Raphael attend for examination in Sullivan County, New York, and as so modified, the order is affirmed, with $10 costs to appellant. Foster, P. J., Bergan, Coon, Halpern and Imrie, JJ., concur.